Drone Regulations

The FAA Stakes Out Its Turf in the Drone Wars

Well before Amazon.com (AMZN) introduced the idea of commercial drone deliveries to the public imagination, U.S. regulators were telling people flying these unmanned devices to ground their gadgets and to file for a permit.

The U.S. Federal Aviation Administration has issued a dozen orders to halt the operation of what are technically called unmanned aircraft systems (or UAS) for commercial pursuits, including those performed by aerial photographers, videographers, and journalism schools. And while no one disputes the FAA’s role in regulating the U.S. national airspace, some legal experts question whether the agency has authority over the use of private commercial drones that operate below 400 feet and away from airports.

Brendan Schulman, an attorney at Kramer Levin Naftalis & Frankel in New York, says no U.S. regulation specifically addresses commercial drone use and that the agency has merely stated the commercial drone ban as federal “policy”—one not subject to a prior rule-making process. “I think it’s doubtful, legally speaking, that the FAA was ever given jurisdiction over that airspace” under 500 feet, says Schulman, himself a private drone enthusiast. “That’s not where you would find people flying in airplanes.”

Nonetheless, the agency has rules about drones, issues permits for their use, and levies fines on people it deems bad actors. In July, the FAA heralded its approval of user certificates for two commercial drones weighing less than 55 pounds. Both were planned for energy exploration in the Arctic, and the agency was quick to note that it viewed the approval as an initial step to integrating commercial drones into the U.S. airspace.

Many drone enthusiasts are hoping the agency will follow through with rules in 2014 for broader use of these smaller drones—the kind that journalism professors, farmers and, eventually, Amazon, all want to exploit for different tasks. The real estate industry, in particular, has taken a special shine to drones for their ability to shoot alluring video of tony properties and entice potential buyers.

As of now, the FAA is also playing the role of enforcer. “I don’t know if you’ve ever gotten a certified letter from the federal government, but it’s an exhilarating experience,” says Matt Waite, a journalism professor at the University of Nebraska, Lincoln’s Drone Journalism Lab, which received a cease notice in July. The professors there have been training future journalists to report stories , using drones fitted with cameras. (One example, covering a 2012 drought, can be seen here.) Waite says the drone lab “wrongly believed that we could fly under hobbyist rules because we weren’t doing any research and development into drones, and there was no commercial interest in what we were doing.”

Schulman’s law firm launched an unmanned aircraft systems practice on Dec. 18. One of that group’s first cases is the $10,000 penalty assessed by the FAA (PDF) on Raphael Pirker, a video-drone photographer, for an October 2011 drone flight at the University of Virginia. The school’s public relations firm had hired Pirker to shoot the footage, which the FAA contends shows Pirker operating a drone “in a careless or reckless manner so as to endanger the life or property of another.” Schulman has filed a motion to dismiss the penalty, which is pending before an administrative law judge at the National Transportation Safety Board.

“I think the FAA is viewing this technology as the same thing as an airplane, except without the pilot, and their view is we have to replace the pilot with something else,” says Schulman. He contrasts the FAA’s slow, cautious approach to commercial drones with the Internet, another government-funded entity that burst into worldwide popularity long before any rules or regulations governed its commercial use. “The answer wasn’t to ban the Internet until the commercial rules were implemented,” he says.